Legal scenarios regarding Trump’s ballot eligibility with expected appeal to U.S. Supreme Court

DENVER, Colo. (KRDO) -- Former President Donald Trump remains off of Colorado’s Presidential primary ballot, but based on multiple legal scenarios that could change.

Yesterday, the Colorado Supreme Court ruled 4-3 to bar Trump from the March primary ballot because he violated the Constitution by engaging in an insurrection. This is based on a constitutional provision in Section Three of the Fourteenth Amendment.

The affirming justices said Trump gave a speech on that very day that was not protected by the First Amendment, a speech they claim helped "incite the crowd that breached the U.S. Capitol on January 6, 2021.”

In Justice Brian Boatright's dissenting opinion, he argued that Trump should not be barred primarily because he has not been charged or convicted of a crime tied to any type of role in an insurrection.

However, Eric Kibel, an attorney with Robinson and Henry, said the Constitution doesn’t state someone has to be criminally convicted of insurrection.

“It only requires that the person have engaged in insurrection,” Kibel said. “There's no requirement under the Constitution, under its plain language, that requires a conviction.”

Justice Carlos Samour dissented as well and claimed that "there must be procedural due process before we can declare that individual disqualified from holding public office." He added that the majority decision "flies in the face of the due process doctrine."

On Trump’s campaign website, he said he will “take this fight all the way to the United States Supreme Court” and plans to appeal the decision. KRDO13 Investigates reached out to Trump and his campaign for comment but we never heard back.

A likely appeal comes as 16 other states have legal challenges to Trump’s eligibility to hold office, which is why Kibel expects the U.S. Supreme Court (SCOTUS) to take the case.

“It's fairly likely that the court will weigh in,” Kibel said. “There has been a split between various states. Different courts and different states have addressed this issue. So far, the Colorado Supreme Court is the only one that has allowed this type of claim to go forward. Other states have not. This is clearly something that the U.S. Supreme Court will ultimately need to resolve.”

Colorado Secretary of State Jena Griswold said there are many variables and moving parts that will determine Trump’s ballot eligibility, including multiple scenarios where Trump could end up back on the state’s primary ballot.

If the SCOTUS doesn’t take the case, Trump will remain off the ballot. The seven candidates on Colorado’s Republican primary ballot would be Ryan Binkley, Chris Christie, Ron DeSantis, Nikki Haley, Asa Hutchinson, Vivek Ramaswamy, and Rachel Hannah "Mohawk" Swift.

However, if the SCOTUS takes the case, Trump’s eligibility will depend on its ruling and how quickly the justices come to a decision.

A key date is January 5, 2024. This is when the primary ballots must be certified by Griswold. If SCOTUS takes the case but doesn’t make a decision before this deadline, Trump will be placed back on the state’s primary ballot. Trump will also be on the ballot if SCOTUS overturns the Colorado Supreme Court’s ruling by Jan. 5.

Kibel said it’s possible SCOTUS takes the case but doesn’t issue a ruling until the end of their term in the summer, long after the Colorado primaries are over. He said any ruling would then likely affect the general election ballot for November.

If SCOTUS agrees with the Colorado Supreme Court’s ruling, Kibel said it could set a national precedent, not only for the 16 states with legal challenges but for all state elections.

“If the Supreme Court upholds the Colorado Supreme Court ruling on that issue, it would seem to be a binding legal precedent that would preclude President Trump from being elected and serving in office again,” Kibel said.

Colorado Republican Party Chair Dave Williams said the party is seeking a waiver with the National Republican Party to move to a caucus system instead of primaries in 2024. It’s unclear if this switch will happen and how it will affect Trump’s eligibility.